Employer immune under Section 230 in suit over employee conduct

In 2002, an employee of Agilent Technologies named Moore used his computer at work to send a number of e-mail messages and make postings to a Yahoo! group which were threatening in nature. Plaintiffs Delfino and Day were on the receiving end of this rough treatment, and filed suit against Agilent for, among other things, intentional infliction of emotional distress, for allowing Moore to use the system in the manner he had.

At the trial court level, Agilent moved for summary judgment, on grounds that the Communications Decency Act at 47 U.S.C. §230 shielded it from liability. The trial court granted the motion, and plaintiffs sought review. The California Court of Appeal affirmed, holding that §230 immunity barred the action.

To evaluate Agilent’s claim of immunity under §230, the court applied the three elements parsed out of §230(c)(1) in the case of Gentry v. eBay, 99 Cal.App.4th 684 (2002). That test provides that a defendant is immune where (1) it is a provider or user of an interactive computer service, (2) the cause of action treats the defendant as a publisher or speaker of information, and (3) the information at issue is provided by another information content provider.

The court observed that there were no other published decisions in which a corporate employer had been held to be a provider of interactive computer services. But it cited to a couple of law review articles in which commentators had concluded that an employer could meet the §230 provider criterion, and also observed that the evidence on file showed that Agilent’s servers were the means of access to the Internet by thousands of its employees across the country. That commentary and those facts led the court to conclude that the first element in the §230 immunity test had been met.

Next the court considered whether the plaintiffs’ cause of action sought to treat Aglient as a publisher or speaker of information. In addressing this point, the court did not clearly set forth any basis by which the plaintiffs sought to allege that Agilent was the one speaking or publishing the content giving rise to the alleged infliction of emotional distress. Instead, the court looked to the robust history of other cases addressing §230 immunity, noting the varieties of causes of action that had been held barred. Among those causes of action were defamation, nuisance and premises liability, invasion of privacy, misappropriation of right of publicity, and negligent failure to control. With these cases supporting a broad scope of immunity, the court held that the second element in the test for §230 immunity had likewise been met.

Finally, the court easily dispensed with the third element of the test, noting that the record was devoid of any allegations or evidence that anyone other than Moore was responsible for generating the offending content.

[Also covered at IP Law Observer]

Delfino v. Agilent Technologies, Inc., No. 1-03-CV-001573 (Cal. Ct. App. 6th Dist., December 14, 2006)